August 27, 2005

There could be a lot of talk about toads at the confirmation hearings for John Roberts Jr. In one of the few revealing opinions he has written in his brief time on the bench, Judge Roberts voted to reconsider a ruling that said the Endangered Species Act protected the arroyo Southwestern toad from being wiped out by a real estate development. He strongly suggested that Congress could protect only a species whose demise would affect "interstate commerce" - but that toad, he wrote, is a "hapless toad that, for reasons of its own, lives its entire life in California."

Judge Roberts's opinion, with its wry reference to the possibility that an entire species could be destroyed, disturbed environmentalists.

As if Roberts's humor had to do with the loss of a species! As anyone familiar with the case and with constitutional law knows, Roberts is referring to what is matters in a question about the scope of the Commerce Clause: the fact that federal law attempts to reach to something that is entirely intrastate.

Is humor forbidden because the case is about the environment and the environment demands solemn reverence? In any event, the words Roberts applied to the toad seem rather affectionate. Congress is trying to protect endangered species, and here's one that's having trouble staying within the range of Congress's power because it has chosen such a narrow range for itself. The hapless toad! That is, the poor toad. Had a liberal expressed sympathy in that form, I suspect Cohen would have perceived a big, beautiful heart. Look at how Justice Blackmun is endlessly adored for writing "Poor Joshua," when he saw how federal law failed to protect a child.

Cohen continues his thoughts about the arroyo toad case:

But its implications go far beyond the environment. It suggests that Judge Roberts - who broke with even a majority of the conservative judges on his court - may hold extreme states' rights views, the kind that could sharply limit Congress's power to protect ordinary Americans from discrimination, pollution and unsafe workplaces.

"Extreme states' rights views"? Please. The view of the Commerce Clause reflected in that Roberts opinion is that there is some limit to it, that some things that are entirely intrastate and that are not economic activities at all cannot be regulated by Congress. The alternative view is that the Commerce Clause empowers Congress to regulate anything it wants as long as it doesn't violate any constitutional rights. That alternative view is so common that it rarely gets called "extreme," but backing away from it a little and seeing some limit to congressional power is scarcely extreme. Predicting a "sharp[] limit" to Congress's power over commercial activities like unsafe workplaces is either a deliberate distortion of the recent Commerce Clause cases or an embarrassingly incompetent misreading.

More from Cohen:

Having one more justice who supports weakening Congress could make an enormous difference. Last year, Sandra Day O'Connor, whose place Judge Roberts would take, cast the deciding vote to allow a man in a wheelchair to sue under the Americans with Disabilities Act after he was forced to crawl up the steps of a county courthouse. Four justices insisted that his suit was barred by the 11th Amendment, a modest limitation on the power of federal courts that conservatives have distorted into a sweeping "sovereign immunity" shield for states.

But Justice O'Connor voted with the majority that imposed a limit on Congress's commerce power in the cases about the Gun-Free School Zones Act and the Violence Against Women Act. In fact, Cohen is not talking about a Commerce Clause case here at all, something I doubt many NYT readers will notice. He's talking about a case about the scope of Congress's power to enforce 14th Amendment rights. And the crawling-up-the-steps case, despite its emotion-stirring facts, is about a very particular and limited issue. But go ahead and use it to bolster the myth of Justice O'Connor as a giant bulwark protecting the weak from the strong.

I detest the exaggerated statements about federalism and "states' rights" that typify the NYT coverage of the Supreme Court. You can legitimately take a very broad view of congressional power, interpreting the Commerce Clause so broadly that Congress has an unfettered choice in what to regulate. Justice Breyer does an excellent job of articulating that viewpoint on the Court. No one expects a Bush appointee to go to that end of the spectrum. Roberts will surely have some interest in federalism-based limits on congressional power. I wish the NYT could calm down and take the trouble to explain exactly what these limitations are likely to be.

17 comments:

Had a liberal expressed sympathy in that form, I suspect Cohen would have perceived a big, beautiful heart.

I suspect not.

So where does that leave us? Well, with competing smug hypotheticals. The "liberals would have said this" or "conservatives would have said that" construction is a cliche without much argumentative weight.

Perhaps it is viewed as a cliche because examples such as this are so ubiquitous on the pages of the NYT -- and it isn't nearly as much of a cliche as a member of the MSM referring to a conservative's "extremist views." Yawn.

Thersites, you are in denial of the obvious.... I shouldn't say more After all, I don't want to make the mistake to generalize liberals as being so intellectually superior that they cannot be generalized.

I think what Cohen means is that Roberts may take an "extreme" view similar to that of a majority of the Supreme Court. Funny how a majority position on the Supreme Court sometimes means the position is "mainstream" and must be adhered to and sometimes means it's "extreme" and may not be followed.

unfortunately, the position that roberts suggested the court should consider (not necessarily adopt, just listen to) in the case is not that of a majority of the court.

the argument that the toad was not protected by the endangered species act was a good one in light of lopez and morrison. in the wake of the medical marijuana case, however, it would not seem to stand a chance anymore.

Ziemer, how can you seriously conflate the issue of guns, for which the interstate commerce effects are obvious, with that of the California toad? Are you telling me with a straight face that there is some kind of thriving interstate trade in them there toads to compare with the interstate marketing and movements of firearms? Good grief, if there was ever a case where the Commerce clause applicability is fairly obvious it is in the case of firearms (requiring no contortionistic nonsense of the Wickard sort of "logic"), which is exactly why the 2nd Amendment has to exist and be followed rigorously.

Say what you will about Raich (and I think that Wickard is breathless overreach that could never be taken seriously absent the Depression), there is no way that gun control works as analogy for the ESA and a one-state toad.

as far as i'm concerned, if the endnagered species act is constitutional, it is not pursuant to the commerce clause. some other source must be found.

but if it is constitutional, pursuant to the commerce clause, as everyone else participating in this thread is assuming for purposes of this discussion, then exempting the hapless toad from its reach, merely because it exists only in california, would gut that power.

which is what the court held in raich: allowing california to license medical use of marijuana, even though the marijuana involved has been exquisitely removed from both commerce and interstate movement, would gut congress' intent -- to make all doobage smokers pariahs.

so, just as the california law was struck down, even though it had no real effect on commerce, much less interstate commerce, the toad must be protected, even though the toad has no effect on commerce, much less interstate commerce.

congress has declared that the protection of endangered species is within its commerce clause power, the supreme court has acquiesced in that (however irrational that may be), and as such, not even wholly inTRAstate toads can be excepted, or the statute would fail its intended purpose.